Territorial and First Nations leaders are not saying much after counsel for the federal government dropped a bomb in Yukon Supreme Court last week.
Lawyer Suzanne Duncan said Canada has made an “internal commitment” to discuss with the Ross River Dena Council the possibility of resolving a land claim
outside of the Umbrella Final Agreement (UFA).
The UFA provides the framework to negotiate land claim and self-government agreements in the Yukon. It was used by 11 Yukon First Nations, and is routinely held up by local elected officials as a paragon of nation-to-nation diplomacy.
Though the UFA is not a legally binding document, the final agreements that flowed from it are.
As part of a Yukon Supreme Court hearing, Ross River is claiming the UFA was not properly ratified.
It’s a key piece of the First Nation’s ongoing case against the government of Canada.
Ross River is arguing that Canada defaulted on its constitutional obligation to address its aboriginal rights and title before opening up its traditional lands to settlers and resource development, including the Faro mine.
Canada, Ross River contends, dishonoured the Crown when it surreptitiously inserted a clause in the UFA that gave the Yukon government veto power over land
claims that cross territorial borders.
The First Nation argues that Canada has continued for decades to shirk its constitutional obligations by rebuffing Ross River’s requests to negotiate a separate and distinct land claim and self-government agreement.
But now Ottawa seems to be singing a different tune.
Ken Coates is a Whitehorse-raised professor of public policy at the University of Saskatchewan.
Coates, who specializes in aboriginal rights and northern Canadian history, believes Canada’s change of heart is significant.
“It’s a message that Ross River has wanted to hear for a long time,” Coates said last Wednesday during an interview in Whitehorse.
“(Canada) saying they’re willing to go that next step is obviously something that people are finding quite fascinating.”
Thus far, Ottawa has claimed it negotiated in good faith, and implied it’s Ross River and Liard First Nation that impeded land claim and self-government negotiations,
He surmised that Ottawa’s change of heart relates to Prime Minister Justin Trudeau’s stated mission to reset Canada’s relationship with indigenous peoples,
specifically in areas where there are legal conflicts.
“It’s quite clear the Liberal government is trying to establish a pattern where some of the things that have been intractable come off the table and become seen more in a more practical way,” said Coates.
Why the federal government went public with its turnabout in court, rather than in some other format, remains a mystery.
The government doesn’t come to a major decision like this without the green-light from a minister, said Coates.
He suggested that Jody Wilson-Raybould, the minister of Justice, and Carolyn Bennett, the minister of Indigenous and Northern Affairs, are looking to pivot from the previous Conservative government’s pattern of negotiating with indigenous peoples.
Chief Jack Caesar of Ross River told the Star Monday it’s too early to comment on lawyer Duncan’s remarks of last week.
“We don’t even know the fallout of the court case there, so I think we’re just going to wait and not comment until the members are aware of how things are unfolding,” Caesar said.
Ross River is part of the Kaska Nation, as are the Liard First Nation of Watson Lake, and three bands in British Columbia.
The Kaska’s traditional territory spans the Yukon, northern B.C. and part of the Northwest Territories.
Transboundary issues have been a sticking point in previous land claim negotiations.
Should the Kaska negotiate a new, separate deal with Canada, the Yukon government would necessarily play an active role, said Coates.
But the territory’s current position is rather hazy.
In the week since Canada revealed it’s open to negotiating separate agreements with the Kaska, Premier Sandy Silver has not made himself available for an interview with the Star to discuss the dramatic development.
In a short statement emailed Monday, Silver continued to tout the UFA as the playbook for nation-to-nation collaboration.
“We believe the Umbrella Final Agreement has provided a positive foundation for all Yukoners,” he said.
“The Final and Self-Government Agreements have proven to be instruments for collaborative nation-building, environmental protection, sustainable economic growth and, most importantly, reconciliation.
“We welcome the opportunity to learn more about Canada’s approach in this situation, and will work to ensure that any new approach taken is respectful.”
But what could separate agreements with the Kaska mean for the UFA and its 11 Yukon First Nations signatories?
Grand Chief Peter Johnston of the Council of Yukon First Nations declined to comment because Ross River and Liard First Nation are not part of his organization.
Coates said that as long as the federal government follows the same general parameters, and addresses some Kaska-specific issues, “the UFA folks will find it
somewhat acceptable, but you never know until the negotiations are done.”
Already, a massive amount of time and energy have gone into negotiating and implementing existing land claim agreements, and into building capacity within the self-governing First Nations, said Coates.
Beyond how the UFA was ratified, which Ross River claims was not done in accordance with a previously agreed-upon process, there are a number of reasons why a First Nation might want to opt out of the umbrella, said Coates.
One is a lack of confidence within the community that it will get the best deal possible.
“These are sort of once-and-for-all shots,” said Coates.
“You usually don’t get a do-over on these things, so every community that’s ever negotiated a land claim deal has agonized over it.”
Indeed, should Ross River initiate talks, the government will have to be careful not to offer the First Nation anything more favourable than what the 11 self-governing
Yukon First Nations were given.
The other thing that’s changed since the 1970s, when land claim talks in the Yukon began, is that there is more knowledge of the resource potential in the Kaska
territory, said Coates.
“So the issues and things on the table are quite large, more substantial.”